David Moran and the Art of Mooting

"I'm gratified the Court reaffirmed the principle it had recognized for over a century: an acquittal, whether by a judge or jury, is final and the State cannot put a citizen through the ordeal of a retrial following an acquittal simply by identifying errors in the trial leading to the acquittal," said Prof. David Moran, who argued the case before the Supreme Court in November. "To put it simply, it's the State that puts people on trial, and the Double Jeopardy Clause stands for the proposition that it is the State, not the citizen, who must bear the risk that mistakes are made during that trial."

Prof. Richard Friedman was one of Prof. Moran's co-counsels on the case.

By John MassonOct. 30, 2012

No point is ever moot when you're preparing to argue before the United States Supreme Court.

Hence the widespread practice of running through your arguments—a.k.a mooting—in front of various audiences ahead of the big day in Washington. That's what was happening during a recent blustery afternoon in Ann Arbor as a panel of nine stern-faced Michigan Law professors assembled on the podium at the front of Honigman Auditorium.

Just below them stood Michigan Law professor David Moran, counsel of record in Evans v. Michigan, a double-jeopardy case due to be argued before the Supreme Court Nov. 6.

"You're just getting prepared for oral argument, to get you to think of all the possible questions the justices might ask," said Prof. Moran, who cofounded the Law School's Innocence Clinic. "You want to do enough moots on each case so that you're never surprised."

Evans v. Michigan seeks to determine whether a defendant can be tried again after the trial judge erroneously holds a particular fact to be an element of the offense, then grants a directed verdict of acquittal because the prosecution failed to prove that fact.

The case originated in Detroit, when two police officers saw a vacant house burning. Then, the officers said, they spotted Lamar Evans walking along carrying a can of gasoline. The officers claim Evans made an incriminating statement after they detained him.

The problems arose after prosecutors chose to charge Evans with "burning other real property," because the burned house had been vacant at the time of the fire. The defense argued that the charges actually required prosecutors to prove that the building wasn't a dwelling house, and the judge agreed—then determined that the prosecution had failed to prove that element. With that she granted Evans' motion for a directed verdict of acquittal.

Prosecutors appealed, and the Michigan appellate courts decided the trial judge erred. But they also said the double-jeopardy clause didn't bar a retrial. And it's that question that ended up at the U.S. Supreme Court.

Moran had additional help at his fingertips: Prof. Rich Friedman, one of three co-counsels on the case and a Michigan Law colleague, took careful notes throughout the moot, which was sponsored by the Criminal Law Society and the American Constitution Society. And dozens of student onlookers also pitched in with their questions during a Q & A afterward.

All the participants agreed not to discuss the arguments or strategies until after the case is argued Nov. 6.

It wasn't the first run-through of the Evans case for Moran, who has argued five other cases before the Supreme Court over the years. He'd already been put through his paces by a panel of Harvard Law professors earlier in the week.

And a dozen Michigan Law students, who have been taking Moran and Friedman's seminar on the case, "An Insider's View to Supreme Court Practice," mooted him earlier this week. (The same students will attend arguments in Washington and get a tour of the Supreme Court building afterward.)

One more panel, at Georgetown Law this Friday, will grill Moran as well.

The different panels provide important contrasts, Moran said.

"The questions at Harvard were more technical, whereas the questions at Michigan were more about the big picture," he said.